State-based censorship regimes need a Digital Bill of Rights for consistency

Fundamental to these proposed rights is the notion that government can no longer realistically expect to control its citizens' access to and participation in discussions and communication online. Government should not just acknowledge this, it should facilitate participation by investing in telecommunications infrastructure.

In the era of mass media, the people receive their information from a small number of influential sources. This concentration of media largely results from the economies of scale required to profitably operate a media organisation with twentieth century technology. This concentration makes media vulnerable to government influence and regulation, through defamation laws, onerous classification schemes, broadcasting licenses and special handouts .

But in the online era any person can be a participant in a devolved and diverse media, whether through email lists, websites, chat sessions, or however. Attempts to regulate communications between mere citizens will produce laws which are enforced as infrequently as they are unfairly. Prosecutions and heavy damages will be visited upon those who stand out from the crowd, not for the inherent illegality of their speech, but because they are an annoyance to some petty or vindictive person or corporation. Defamation laws will continue as a general disincentive against free discussion, not necessarily because a discussion may be technically illegal, but because of the risks surrounding the interpretation of defamation laws. The High Court's limited recognition of free political communication has not improved the situation much. (see Theophanous but also Lange). Citizens are still being intimidated into apologies and costly settlements by wealthy complainants using defamation laws.

Exactly which rights should be legislated by the Commonwealth Parliament are a matter for discussion but we can no longer sensibly leave the matter for state parliaments. A national approach is required, an approach founded on an appreciation of the fundamental importance of freer communication.

James Madison said:

"A popular government without popular information or the means of acquiring it, is but a Prologue to Farce, or a Tragedy, or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own Governors, must arm themselves with the power which knowledge gives."

Was the 2001 election a Farce or a Tragedy? Given the Howard Government's manipulation of the media for the purpose of winning a third term, it is doubtful they would want to give effect to these ideas. It is up to the Labor Party to make the argument for a national guarantee of freer communication online.

Acknowledgments

Assistance with some legal details was provided by Helen Wilson.

The motion itself was drafted by the author with input from Ben Heraghty, current AYL President.